Promasidor Nigria Limited & Anor V. Miss Ruth Asikhia (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

This action was instituted at the High Court of Lagos State by Mr. Festus Asikhia. The cause of action arose from the circumstances surrounding his exit from the 1st Appellant Company. He died during the pendency of the action at the lower Court. The cause of action having survived him, he was substituted with his daughter, Miss Ruth Asikhia. By the 2nd Further Amended Statement of Claim in the said action in SUIT NO. LD/1158/1998: MISS RUTH ASIKHIA vs. PROMASIDOR NIGERIA LIMITED & ANOR., the Claimant claimed the following reliefs:

1. A DECLARATION that in so far as the Original Claimant, Mr. Festus Asikhia, did not write or submit a letter dated 10th March, 1998 or any other letter disengaging his services the 1st Defendants letter dated 10th March, 1998 purporting to accept the Original Claimants letter of resignation dated 10th March, 1998 with effect from 11th March, 1998 is null and void and of no effect.
2. AN ORDER setting aside the 1st Defendants letter dated 10th March, 1998 headed ACCEPTANCE OF RESIGNATION LETTER.

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3. AN ORDER that the 1st Defendant do pay to the Claimant being the personal representative of the Estate of the deceased original Claimant all his salaries, allowances and other entitlements which would have been payable to him but for the contents of the said letter of the 1st Defendant dated 10th March, 1998.
4. A DECLARATION that the 1st Defendants policy of preference for a white man as the Companys Workshop Manager instead of the original Claimant who is a citizen of Nigeria and who was hitherto occupying the post is in breach of the provisions of Articles 2, 15 and 28 of the Schedule to the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. 10 Law [sic] the Federation of Nigeria 1990 and Section 391(2) [sic] of the Constitution of the Federal Republic of Nigeria 1979 and therefore is illegal null and void.
5. The sum of N50million being damages for the racial discrimination and degrading treatment meted to the original Claimant by the 1st Defendant at the 1st Defendants premises at 23, Wharf Road Apapa, Lagos on 10th March, 1998.

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6. The sum of N5Million being damages for the malicious falsehood contained in the 1st Defendants letter dated 10th March, 1998 when the 1st Defendant falsely alleged that the original Claimant wrote a letter or [sic] resignation of his appointment dated 10th March, 1998.

The parties filed and exchanged pleadings. The Respondent raised a counterclaim. The matter was subjected to a full dressed plenary hearing at which testimonial and documentary evidence was adduced. In its judgment which was delivered on 24th May 2011 the lower Court entered judgment in part for the Claimants claim and also in part for the Defendants counterclaim. So it was a win-win situation. It seemed that there was no victor and no vanquished. The Defendants were however dissatisfied with the part of the decision of the lower Court wherein the sum of N2.5 million was awarded in favour of the Claimant as damages for malicious falsehood. The judgment of the lower Court is at pages 491-501 of the Records, while the Notice of Appeal is at pages 502-504 of the Records.

The Records of Appeal were compiled and transmitted, the Appellants filed their brief of argument but the Respondent failed to file a brief more than five years after the Appellants Brief had been filed and served on her.

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The appeal was set down for hearing and at the hearing, even though the Respondent was represented by counsel, he could not be heard in oral argument, having failed to file a Respondents Brief vide Order 19 Rule 10 (1) of the Court of Appeal Rules, 2016.

In the Appellants Brief which was filed on 30th April 2013 but deemed as properly filed on 21st November 2017, three issues were distilled for determination:

1.Whether the tort of Malicious Falsehood is applicable to a Master Servant relationship to warrant the decision of the learned trial judge to have awarded the sum of N2.5M as damages against the Appellants (Ground 1).

2. Whether the learned trial Judge was right to have found and held that the Appellants maliciously procured the letter dated 10th March 1998 when there is no evidence to support the findings of the Court (Ground 2).
3. Whether the award of the sum of N2.5 Million as damages for malicious falsehood against the Appellants was justified considering the total entitlement to the Respondent (Ground 3).

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It seems to me that the issues distilled by the Appellants can be considered under a sole coalescent issue as follows:

Whether the lower Court was right to have awarded the sum of N2.5m in favour of the Respondent as damages for malicious falsehood.

It is on the basis of this issue as crafted by the Court which is succinct, apt and encompasses the three issues formulated by the Appellants that I will consider the submissions of the Appellants counsel and resolve this appeal.